In a move that runs counter to the public interest, some local governing bodies are adopting a resolution opposing legislation that would modernize and strengthen the state’s Open Public Meetings and Open Public Records Acts (OPMA and OPRA). Importantly, the resolution, which is nearly uniform from town to town, contains incorrect statements about the reform legislation (S106 and S107).

Here are the THE FACTS about S106 and S107. The bills amend the Open Public Meetings Act (OPMA) and Open Public Records Act (OPRA), respectively.

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Incorrect claim #1: The bills are unnecessary and unpopular with the public.

THE FACTS:

Safeguarding public funds requires a watchful, informed public. Bills S106 (OPMA) and S107 (OPRA)benefit the public by empowering people to better oversee those responsible for handling tax dollars. Strong Open Public Meetings and Records laws (OPMA and OPRA) are necessary for that advocacy. The need to strengthen these laws has been demonstrated time and time again by repeated OPMA and OPRA violations by public agencies across the state.

The reform legislation has broad support from public advocacy organizations and their members. These organizations include the New Jersey Foundation for Open Government, the New Jersey Press Association, the American Civil Liberties Union of New Jersey, and the New Jersey Chapter of the Society of Professional Journalists, to name just a few.

Primarily, bills S106 (OPMA) and S107 (OPRA) modernize the statutes for widespread adoption of the internet and electronic communication, allowing for better, more timely access to information. The bills establish which public agencies and bodies, including certain quasi-governmental entities, are subject to the Acts and encourage them to make public records available online. Other significant public benefits are listed below.

S107 (amends Open Public Records Act):

requires posted notice of the name and contact information for the agency’s custodian of records

clarifies which records are public as well as private

provides immediate access to certain records and defines when access must be granted

spells out the redaction process to prevent inappropriate obscuring of information or pages

requires adjudication of complaints by the GRC within 150 days

allows a requestor to file a court action in place of a GRC complaint that is open more than 150 days

creates an online searchable index of GRC opinions

strengthens the provision addressing a denial of access that is willful or due to gross negligence and clarifies that penalties shall not be paid with public monies

S106 (amends Open Public Meetings Act):

clarifies when meetings must be open to the public

improves agenda notice requirements and limits last-minute items

provides better access to supplementary agenda materials

requires that all public meetings have a public comment period

establishes a timeframe for release of meeting minutes

clarifies the window for challenging action taken at a meeting

improves disclosure of subcommittee activities

S106 (OPMA) also includes a provision that allows an individual who brings a successful Meetings Act enforcement action to recover his/her legal costs (“fee-shifting”). No fee-shifting provision exists in the OPMA currently. Few enforcement actions are brought because most people can’t afford to bring them. Importantly, a fee-shifting provision would act as an effective deterrent to public bodies and agencies, increasing their voluntary OPMA compliance from the get-go and reducing the need for enforcement actions. The absence of an enforcement mechanism has resulted in widespread OPMA non-compliance by public bodies, including many who have a resolution opposing the OPMA reform that would give their constituents the means to enforce the law.

The Open Public Records Act already includes a fee-shifting provision that has improved both enforcement of and compliance with the law. OPRA mandates that a requestor who prevails in any proceeding shall be reimbursed attorney fees when a public agency is found to have improperly withheld records. Because the agencies that hold the records can choose not to disclose them for a variety of reasons, a strong enforcement mechanism is necessary for a requestor who encounters an improper denial of access.

THE FACTS:

First, bill S107 (OPRA) contains a new provision that, in exceptional circumstances, specifically grants a records custodian the right to ask a court to issue a protective order when a requestor submits voluminous requests solely to harass. This measure is intended to address the exact issue that is the subject of incorrect claim #2 above.

Second, while there may be a few bad actors, the overwhelming majority of OPRA requestors are seeking public information for a legitimate purpose. Members of the public or media, advocacy groups, and even government officials themselves are among those seeking records.

The volume of requests, including follow-up requests, submitted by legitimate requestors is partly a function of how forthcoming a public agency is in making records available. A public agency can reduce the volume of records requests and the resources needed to respond to them simply by operating transparently. A wide range of public records can be made available on an agency’s website, and a records custodian can fill a request for records by directing a requestor there. Ample guidance can be provided as to what records are available to better accommodate persons seeking information and to reduce the number of follow-up requests. Also, a records custodian can seek an extension of time to fill requests if needed.

Incorrect claim #3: The legislation would expand the Open Public Meetings Act to create impractical and burdensome requirements with regard to subcommittees and working groups.

THE FACTS:

Subcommittees that are a sub-quorum of a governmental body may hold meetings that are open or closed to the public at the discretion of the body. Bill S106 (OPMA) does not change that. However, S106 would require that at least once per quarter each subcommittee submit a written report to the full body, or make an oral report at a meeting of the full body, for inclusion in the full body’s meeting minutes. The subcommittee would not need to keep comprehensive minutes; rather, the written or oral report would summarize who sits on the subcommittee, how many times the subcommittee met, and the general issues discussed. That is hardly “impractical and burdensome.”

The subcommittee provision in S106 applies only to working groups that are a sub-quorum of the governing body, not to every committee in a town or county. For example, the provision would apply to a town council’s Personnel Subcommittee or Budget Subcommittee, but not to the town’s Safety Committee or Recreation Committee on which a council member sits.

The Open Public Meetings Act was intended to allow the public to witness the deliberation underlying governmental decisions and actions. Often, the deliberation on an issue occurs at the subcommittee level with only a single recommendation and rubber stamp occurring at a public meeting of the full body. Thus, it is appropriate that the public be informed what options were considered by the subcommittee and why it reached the conclusion it did, especially pertaining to issues of significant public concern.

Incorrect claim #4: Under the bills, the responsibilities of municipal clerks would increase without additional resources provided to, or authorized to be collected by, municipalities.

THE FACTS:

Typically designated as the “custodian of records” for OPRA purposes, a municipal clerk is charged with keeping public records; that is a fundamental responsibility of his or her office. S106 (OPMA) and S107 (OPRA) do not significantly alter the duties of records custodians, public officials, or public agencies. The main purpose of the bills is to modernize the statutes for the widespread adoption of the internet and electronic communication.

By clarifying what information must be made available to the public and by offering modern ways to provide it, bills S106 (OPMA) and S107 (OPRA) will help records custodians and public agencies to better, and more easily, comply with OPMA and OPRA requirements. For example, bill S107 (OPRA) allows custodians to fill an OPRA request by directing a requestor to the agency’s website to retrieve the records. A municipality can reduce the number of records requests it receives and the work of the clerk in responding to them by maintaining a website and posting on it a wide range of public documents. S107 makes available an optional state-funded program that provides technical assistance to municipalities in developing and maintaining their websites to better comply with the statutory requirements. Municipalities will also have the option of using a state database to store their documents.

OPRA allows for certain revenue to be collected by municipalities. Under the current law, a requestor may be charged the actual cost of materials, such as the cost of a CD or paper copies, as well as a special service charge for requests that take a lot of time and effort to fill. Additionally, bill S107 (OPRA) would allow an administrative fee for requests submitted by commercial entities, a fee to cover direct costs when records that are available online are requested in a different format, and a fee for copies made as part of the redaction process.

Incorrect claim #5: The bills would impose a financial burden on municipalities that would not be offset by a revenue source other than the property tax, making the bills unfunded mandates.

THE FACTS:

Providing access to public records and meetings is an integral responsibility of government and a normal cost of operation that serves to ensure the good stewardship of public funds. It is appropriate to use tax dollars to provide that access, which greatly benefits taxpayers and reduces the tax burden by helping to ensure that public monies are being managed responsibly. Taxpayers would most certainly pay a higher price for the waste and abuse that would flourish if government was allowed to operate in the dark.

The Open Public Records Act currently allows for certain fees to be charged by public agencies. A requestor may be charged the actual cost of materials, such as the cost of a CD or paper copies, as well as a special service charge for requests that take a lot of time and effort to fill. Additionally, bill S107 (OPRA) would allow an administrative fee for requests submitted by commercial entities, a fee to cover direct costs when records that are available online are requested in a different format, and a fee for copies made as part of the redaction process.

A public agency that has improperly withheld records is required under OPRA to reimburse the legal fees of a requestor who must sue to get them (“fee-shifting”). S106 would amend the Open Public Meetings Act (OPMA) to include a fee-shifting provision like that in OPRA. It is important to give the public a means to enforce the Acts and to increase voluntary compliance by public agencies.

A municipality can avoid the cost of OPRA and OPMA enforcement actions simply by complying with the law. Better training of municipal clerks, public officials, and agency attorneys on the statutory requirements may greatly reduce the number and cost of disputes. Bills S106 (OPMA) and S107 (OPRA) help both governmental offices and the public by clarifying what information is public in nature, when it must be provided and how. The legislation is a less costly and more efficient alternative than having the courts decide these issues.

By offering modern ways to provide information, bills S106 (OPMA) and S107 (OPRA) help public agencies to better, and more easily, comply with OPMA and OPRA requirements. Public meeting materials and an abundance of other public records can be made available on an agency’s website, and the records custodian can direct people there. Of the 565 municipalities in New Jersey, 562 (99.5%) already have a website.For those that need it, bill S107 makes available an optional state-funded program that provides technical assistance to municipalities for website development and upkeep. Municipalities will also have the option of using a state database to host their documents.

The New Jersey Foundation for Open Government (NJFOG) is the only non-profit organization in the state dedicated solely to improving public access to governmental records and meetings. We work to educate the public about the Open Public Records Act and Open Public Meetings Act, to strengthen these laws, and to increase governmental compliance, transparency, and accountability.

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